Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Tuesday, January 31, 2012

U. of T. and Western Capitulate to Access Copyright

In an astonishing development that has caught all but a handful by surprise, U. of T. and Western have signed copyright deals with Access Copyright that appear to be an early and complete capitulation to an important battle over the costs and parameters of access to knowledge in Canadian post-secondary institutions.

The agreements will be until the end of 2013 and will renew automatically for one-year terms during which any party can cancel or renegotiate the agreement based on six months notice. A UWO official says “The new royalty is substantially below the amount initially sought by Access Copyright in its Tariff application before the Copyright Board.”

A few preliminary comments:

This is an 800% increase over the current basic amount of $3.38 per student. Although this eliminates the current $0.10 a page cost for course packs, such course packs are increasingly irrelevant as more and more material is available legally online at no cost or through licenses that the university has already bought and paid for. Many students don’t need or use “course packs” anymore.

It is unclear how this new deal will affect existing arrangements at U. of T., for example, where many course packs have long been printed off campus by third parties, who have been separately licensed by Access Copyright on the basis of a $0.10 a page “royalty”. Since this is to be an “all you can eat” rate, how and by whom is the course printing going to be handled and how will the costs be allocated? Will students who don’t need course packs have to subsidize those who do?

As Access Copyright itself admits, the $45.00 figure was only a “suggested” figure. It may as well have been – and probably was – pulled out of thin air. The comparable rate in the USA – for the relatively few universities (usually the smaller ones) that feel any necessity to pay it – is about $3.75 per head.

Those familiar with the way the Copyright Board usually works might reasonably expect the final tariff to be less than half of the $45 “suggested” rate. Where there are two somewhat rationale rate proposals, the Board usually finds a position somewhere near the middle. Even the K-12 decision, which CMEC appealed, essentially split the difference between the two parties’ positions. $27.50 is a VERY, VERY GOOD DEAL for Access Copyright. In fact, it is about 50% MORE than Access Copyright now gets per university student on average overall in Canada – and this is almost 8 years AFTER CCH. For any number of reasons, including the proliferation of already paid for or cost free legal digital alternatives and reliance on the empowering fair dealing provisions of CCH, one would have expected the payments to Access Copyright to significantly decrease, not to increase.

In the present case, the $45 “suggested” figure was pure conjecture even on the part of Access Copyright. Cutting this back by less than 30% is unlikely to be widely seen as a victory.

The deal supposedly includes an indemnity and digital rights. There is plenty of reason to question whether Access Copyright has any chain of title to any significant amount of the repertoire required by Canadian universities, much less in the digital rights to such repertoire. Therefore, whether Access Copyright has the right to grant these digital licenses and offer any indemnity and whether the universities should rely on such provisions are good questions.

Both of these institutions will almost certainly pass this $27.50 cost entirely on to their students and wash their hands of this issue. Once again, this is more than 8 times the current basic rate under the already controversial interim tariff that most universities have walked away from. Should two leading universities negotiate with their students’ money in a way that will affect the entire post-secondary sector in Canada both quantitatively and qualitatively for years to come?

U. of T. has prepared a document for its student body rationalizing its decision, which is available here. The document contains too many questionable assumptions and assertions to discuss here. However, the most surprising aspect is that the settlement is apparently being rationalized by the rates being paid in Quebec. Suffice it for the moment to say that this is quite possibly the least logical and appropriate rate precedent or proxy that could possibly have been chosen. The document also refers several times to the fear of possible retroactivity of any ultimate Board tariff. This fear is arguably overstated.

Some preliminary questions:

Why would two such prestigious and financially able institutions not stand up to fight against a proposed tariff that is so problematic and expensive?

Why did they not wait to hear what the Supreme Court of Canada had to say about fair dealing?

Why not wait for Bill C11, which Access Copyright proclaims will enhance the educators’ position with the explicit inclusion of "education" in "fair dealing"?

What are the all-important terms and conditions that have been agreed to? For example, did the universities acknowledge that absurd provision purporting to entitle payment to Access Copyright for mere linking? Or the outrageous and privacy invasive demand to monitor professors’ email accounts? Or the completely arbitrary quantitative limits in the proposed tariff?

What effect will this have on the future of current post-secondary case at the Copyright Board?

Will that case proceed and set a tariff that will be effectively “mandatory”? Were the other universities – which had reportedly budgeted two million dollars for this fight and then mostly “opted out” of any dealing with Access Copyright – aware of this development and, if not, how will they react? How can the publicly “agreed” upon and arguably much too high high rate of $27.50 NOT affect the outcome at the Copyright Board for everyone else?

Was the AUCC – which was coordinating the universities’ fight at the Copyright Board – involved with or even aware of this development?

Of immediate concern, when will these agreements be made public? These agreements surely should be made public because tens of thousands of professors and students are now bound by them, whether or not they wish to be.And tens of millions of taxpayers’ dollars per year are now at stake if these agreements become the new normal in Canada.

HPK

PS - Here is a a copy of the executed U. of T. license. It is not in searchable format. At the time of posting, I haven't had a chance to read it yet.

5 comments:

I actually sit on the Access Copyright Working Group for Western. No one that I know on that committee knew anything about this agreement. It also comes hot on the heels of the entire student body (undergraduate and graduate students alike) voting to opt out of the Access Copyright Tariff. There are many, many questions about the deal and the entire process that need to be made public.

This is so very frustrating. Possibly one of the more aggravating aspects of deal is it means that students will be paying to do any number of things with works over the course of their research otherwise considered fair dealing, or in some cases, not even copyrights. These are rights that every other Canadian can exercise freely and lawfully, yet U of T students will be sure to pay repeatedly for them (e.g. course pack material already licensed through CRKN agreements) so the University can make its 'protection' payment to AC.

The definitions in the executed licence indicate that linking or hyperlinking as a type of 'Copy'. Interesting and revealing is the agreement preamble which seems to show that the university does not even agree with what their licence with Access Copyright permits is actually even ‘engaging the exclusive rights of copyright owners’, and yet they sign knowing that it is their STUDENTS who will pay for this useless agreement. Howard, is this a way of saying "we don't agree that linking is copying, but we'll have our students pay for it anyway, and include this statement so no one can accuse us of making students pay for hyperliking like schmucks"? See except:

"Nothing in this agreement restricts the ability of the Licensee to use any Repertoire Work (as defined below) pursuant to a licence or other arrangement made directly with the owner of copyright or other rights holder or in anyway that would be permitted by the Copyright Act, including by way of linking or hyperlinking, nor does it reflect any agreement between the parties as to whether any particular act would or would not be so permitted, or whether any of the activities contemplated herein (including, for clarity, the acts comprising the definition of "Copy") engage exclusive rights of copyright owners under the Copyright Act."

The Newfoundland & Labrador Library Association has distributed the following open letter:

In 2011, over 30 Canadian universities and colleges opted out of licensing agreements with Access Copyright, The Canadian Copyright Licensing Agency, due to both Access Copyright’s significant increase in per-student fees as well as the introduction of what many considered to be intrusive and impractical monitoring requirements.

The NLLA fully endorses the decision of Canadian universities and colleges to opt out of the proposed Access Copyright agreement, which we feel would have a significant and unnecessary negative impact on teaching and learning and on academic freedom in this country. In January 2012, two universities, the University of Toronto and the University of Western Ontario entered into a voluntary licensing agreement with Access Copyright. Hopefully, other institutions will not emulate this misguided and inexplicable decision.

From a library perspective, one of the most troubling aspects of the deal signed with Access Copyright is that it gives Access Copyright additional rights that simply do not exist under Canada’s copyright legislation, specifically, defining copying to include “posting a link or hyperlink to a digital copy”, a definition not upheld by the Supreme Court of Canada. Academic libraries have already paid for access to online content. Having to essentially “pay twice” to link to this content in library reserves, on course sites, or even in an email is unacceptable.

The NLLA strongly urges universities and colleges, particularly those in Newfoundland and in Atlantic Canada, not to capitulate to Access Copyright’s unfair and unreasonable demands. The Canadian Association of University Teachers (CAUT) is also condemning the agreement, advising universities and colleges that “It‘s time to stand up for the right to fair and reasonable access to copyrighted works for educational purposes.”